FAROOQ AHMAD MIR Vs. STATE OF J&K

JUDGEMENT

(1.) THE appellant, an Ex -Constable of the Jammu and Kashmir Armed Police, was dismissed from service in terms of proviso (b) to sub -section (2) of Section 126 of the Constitution of Jammu and Kashmir corresponding to clause (b) of the second proviso to Article 311 of the Constitution of India. Sub -section (2) of Section 126 provides that no member of the civil service of the State or holder of a civil post under the State shall be dismissed or removed or reduced in rank except after enquiry, giving him reasonable opportunity of being heard in respect of the charges and, also, making representation on the penalty proposed. In terms of proviso (b) the sub -section "shall not apply . where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry".

(2.) INVOKING the said proviso, the appellant was dismissed from service without enquiry. He filed writ petition, SWP No. 628/1992. The petition having been dismissed by the learned Single Judge, he has come in letters patent appeal.

(3.) THE short facts of the case are that on 5th April, 1991, while he was posted as a guard at the telephone exchange Ishber Guptganga, Nishat, he proceeded on 30 days earned leave. On 20th April, 1991, he was taken into custody by the CBI in connection with a case relating to the kidnapping and murder of one Dharamvir Sharma, Inspector of Border Security Force on 26th October, 1990. FIR 105/1990 under section 302 RPC and section 3(2)(1) of Terrorist and Disruptive Activities (Prevention) Act, 1987 [TADA(P) Act] was registered at Nishat Police Station. The investigation of the case was later taken over by the CBI at the request of the State Government on 11th March, 1991 leading to registration of RC